dismissed EB-3 Case: Food Manufacturing

U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rrn. A3000 
Washington, DC 20529 
lh~@& bleed ta 
pvmt cleuly unw&u~811ted 
 U. S. Citizenship 
hv of 1 privacy and Immigration 
Services 
FILE: - Office: VERMONT SERVICE CENTER Date: 1 '9 2@& 
EAC 03 071 55276 
PETITION: 
 Immigrant Petition for Alien Worker as a Slulled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 
 1153(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: the Director, Vermont Service Center, denied the preference visa petition. A subsequent 
appeal was rejected and treated as a motion. The motion was denied, after which a second motion was filed 
and also denied. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a knishes manufacturing business. It seeks to employ the beneficiary permanently in the 
United States as a preparation supervisor. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor, accompanied the petition. The director 
determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the 
proffered wage beginning on the priority date of the visa petition. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 
The procedural history in this case is documented by the record and incorporated into ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original February 22, 2005 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. $ 1153(b)(3)(A)(i), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of petitioning for classification under this 
paragraph, of performing skilled labor (requiring at least two years training or experience), not of a temporary 
or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. $ 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. In a case where the prospective United States employer employs 100 or more 
workers, the director may accept a statement from a financial officer of the organization 
which establishes the prospective employer's ability to pay the proffered wage. In 
appropriate cases, additional evidence, such as profit/loss statements, bank account records, 
or personnel records, may be submitted by the petitioner or requested by [Citizenship and 
Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 was accepted for processing by any office within the employment 
system of the Department of Labor. See 8 CFR $ 204.5(d). The priority date in the instant petition is 
September 29, 1997. The proffered wage as stated on the Form ETA 750 is $25.43 per hour or $52,894.40 
annually. 
The AAO takes a de novo look at issues raised in the denial of thls petition. See Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
appeal includes a copy of the beneficiary's 2003 Form W-2, Wage and Tax Statement, copies of the beneficiary's 
pay summaries for the period April 16, 2003 through January 21, 2004, and copies of other Forms W-2 for 
individuals the petitioner claims the beneficiary will replace. The other Forms W-2 are for the years 1997 
through 2003. Other Relevant evidence includes copies of the petitioner's 1997 and 2001 Forms 1120, U.S. 
Corporation Income Tax Returns. The record does not contain any other evidence relevant to the petitioner's 
ability to pay the proffered wage. 
The beneficiary's 2003 Form W-2 issued by the petitioner reflects wages earned by the beneficiary of $40,720, 
and the pay summaries reflect the beneficiary was compensated at the proffered wage rate during the period April 
16,2003 through January 2 1,2004. 
The Forms W-2 in 1997 were for 
 at $10,378, for 
 at $24,654, and for- 
at $18,548 for a total of $53,580. 
The Forms W-2 in 1998 were fo-t $12,345, for at $16,257, for 
 at 
$14,389, and for. at $13,998 for a total of $56,989. 
The Forms W-2 in 1999 were for at $16,587, for m at $1 8,563, and for - 
at $17,546 for a total of $52,696. 
The Forms W-2 in 2000 were for at $17,893, for at $17,996, and for - 
at $17,635 for a total of $53,524. 
The Forms W-2 in 2001 were for at $19,326, for 
 for $16,332, and for m 
t $18,574 for a total of $54,232. 
The Forms W-2 in 2002 were for at $19,285, for at $18,425, and for - 
at $16,584 for a total of $54,294. 
The Forms W-2 in 2003 were for at $1 7,125, for 
 at $1 7,543, and for - 
at $19,364 for a total of $54,032. 
The petitioner's 1997 and 2001 Forms 1120 reflect a taxable income before net operating loss deduction and 
special deductions or net income of 46,901 and $59,484, respectively. The petitioner's 1997 and 2001 Forms 
1120 also reflect net current assets of -$49,279 and -$55,123, respectively. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $52,894.40 
based on the Forms W-2 for the other employees that the beneficiary will replace 
The petitioner must establish that its job off& to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 4 
remained realistic for each year thereafter, until the beneficiary obtains lawfbl permanent residence. 
 The 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. tj 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient 
to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 
612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on September 21, 1997, the beneficiary does 
not claim the petitioner as a past or present employer. However, counsel has provided the beneficiary's 2003 
Form W-2, issued by the petitioner for the beneficiary, indicating that the petitioner employed the beneficiary 
in 2003. Therefore, the petitioner has established that it employed the beneficiary in 2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS will next 
examine the petitioner's net income figure as reflected on the petitioner's federal income tax return, without 
consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049,1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9& Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F.-Supp. 647 
(N.D. Ill. 1982), afd., 703 F.2d 571 (7& Cir. 1983). In K.C.P. Food Co., Inc., the court held that CIS had 
properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, 
rather than the petitioner's gross income. 623 F.Supp at 1084. The court specifically rejected the argument that 
CIS should have considered income before expenses were paid rather than net income. Finally, there is no 
precedent that would allow the petitioner to "add back to net cash the depreciation,expense charged for the year." 
See also Elatos Restaurant Corp., 632 F. Supp. at 1054. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. If the net income the petitioner demonstrates it had available during that 
period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of 
the proffered wage or more, CIS will review the petitioner's assets. The petitioner's total assets include 
depreciable assets that the petitioner uses in its business. Those depreciable assets will not be converted to 
cash during the ordinary course of business and will not, therefore, become funds available to pay the 
proffered wage. Further, the petitioner's total assets must be balanced by the petitioner's liabilities. 
Otherwise, they cannot properly be considered in the determination of the petitioner's ability to pay the 
proffered wage. Rather, CIS will consider net current assets as an alternative method of demonstrating the 
ability to pay the proffered wage. 
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Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal to or 
greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net 
current assets. The petitioner's net current assets in 1997 and 2001 were -$49,279, and -$55,123, 
respectively. The petitioner could not have paid the proffered wage of $52,894.40 in 1997 and 2001 from its 
net current assets. 
On appeal, counsel contends that the petitioner has established its ability to pay the proffered wage of 
$52,894.40 based on the Forms W-2 of the employees the beneficiary will replace. The record does not, 
however, provide evidence that the petitioner has replaced or will replace them with the beneficiary. In general, 
wages already paid to others are not available to prove the ability to pay the wage proffered to the beneficiary at 
the priority date of the petition and continuing to the present. Moreover, there is no evidence that the positions of 
the other employees involve the same duties as those set forth in the Form ETA 750. The petitioner has not 
documented the positions, duties, and terminations of the workers who performed the duties of the proffered 
position. If those employees performed other kinds of work, then the beneficiary could not have replaced them. 
Finally, if the petitioner does not have sufficient net income or net current assets to pay the proffered salary, 
CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner shows 
insufficient net income or net current assets, CIS may consider the totality of the circumstances concerning a 
petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter 
of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In this case, however, the petitioner has only provided tax 
returns for the years, 1997 and 200 1, which is not enough evidence to establish that the business has met all of 
According to Barron 's Dictionary of Accounting Terms 1 17 (31d ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
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its obligations in the past or to establish its historical growth. There is also no evidence of the petitioner's 
reputation throughout the industry. In addition, the petitioner did not provide tax returns for the years 1998 
through 2000 or 2002 and 2003. Those tax returns would be needed to determine if the petitioner met the 
requirements of Sonegawa. 
The petitioner's 1997 tax return reflects a taxable income before net operating loss deduction and special 
deductions or net income of -$6,901 and net current assets of -$49,279. The petitioner could not have paid 
the proffered wage of $52,894.40 from either its net income or its net current assets in 1997. 
The petitioner's 1998 through 2000 tax returns were not submitted. 
The petitioner's 2001 tax return reflects a taxable income before net operating loss deduction and special 
deductions or net income of $59,484 and net current assets of -$55,123. The petitioner could have paid the 
proffered wage of $52,894.40 from its net income in 2001. 
The petitioner's 2002 and 2003 tax returns were not submitted. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal do 
not overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed